Towards Gender Equality: The Muslim Family Laws and the Shari‘ah

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"What if the key that unlocks the cage might not be hidden inside the cage?"

This article examines the conceptions of gender equality in the Islamic legal thoughts and practices, to the challenge that it presents to the construction of an egalitarian Muslim family laws from with-in.

I ask two prime questions:

1-   If justice and equality are intrinsic values in Islam, why are women treated as second-class citizens in Islamic jurisprudential texts?

If equality has become inherent to conceptions of justice in modern times, as many Muslims now recognize; how can it be reflected in Muslim family laws? For approach and conceptual framework, I proceed to examine rules and opinions regulating marriage and its termination as formulated by the classical Muslim jurists (fuqaha).

2-     I choose this focus for two reasons. First, it is through these rules that the control and subjugation of women have been legitimated and institutionalized throughout the history of the Muslim world. Secondly, it is through these rules that gender inequality is sustained in the contemporary world. In the course of the twentieth century, while Muslim states put aside Islamic legal theories in all other areas of law, they retained its provisions on marriage and divorce, selectively reformed, codified and grafted them onto a modern legal system which is purely cruel and unethical standards. By highlighting the theological, philosophical and jurisprudential assumptions that informed the classical jurists' construction of marriage, I aim to explore the genesis of gender inequality in Islamic legal traditions. We should consider challenging these traditions which presents to those seeking to advance an egalitarian construction of gender rights within an Islamic framework and outline relevant developments in the twentieth century. Some suggestions towards these constructions of an egalitarian Muslim family law should be implemented in practical forms in today's world. There are three elements to this argument. First, there is neither a unitary nor a coherent concept of gender rights in Islamic legal thoughts, but rather a variety of conflicting concepts, each resting on different theological, juristic, social and sexual assumptions and theories. This, in part reflects a tension in Islam's sacred texts between ethical egalitarianism as an essential part of its message and the patriarchal context in which this message was unfolded and is implemented.

This tension has enabled both proponents and opponents of gender equality to claim textual legitimacy for their respective positions and gender ideologies. Secondly, we should argue that Muslim family laws are the products of socio-cultural assumptions and juristic reasoning about the nature of relations between man and woman. In other words, they are 'man-made' juristic constructs shaped by the social, cultural and political conditions within which Islam's sacred texts are understood, practiced and turned into laws. The idea of gender equality, which became inherent to conceptions of justice only in the twentieth century, has presented Islamic legal thoughts with a challenge it has yet to meet and will probably never meet!

Finally, we should argue that many elements in these laws are neither defensible on Islamic grounds nor tenable under contemporary conditions; not only are they contrary to the egalitarian  spirit of Islam, they are invoked to deny Muslim women justice and dignified choices in their daily lives...

To be continued in part 2